RUBENSTEIN v. DOE NO. 1Appellant’s Response to Amicus Curiae BriefCal.January 25, 2017te :SUPHEME COURT COPY SUPREME COURT fos FILED “aay JAN 9 5 2017 ae Jorge Navarrete Clerk S$234269 IN THE SUPREME COURT Deputy OF THE STATE OF CALIFORNIA - LATRICE RUBENSTEIN, Plaintiffand Appellant, vs. DOE #1, Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION 1, CASE No. D066722 HON. JUAN ULLOA, JUDGE, SUPERIOR COURT No. ECU08107 JOINT ANSWER TO AMICI CURIAE BRIEFS LAW OFFICES OF ELLIOTN. ESNER, CHANG & BOYER KANTER Holly N. Boyer, SBN 221788 Elliott N. Kanter, SBN 95054 Shea S. Murphy, SBN 255554 2445 Fifth Avenue, Suite 350 234 East Colorado Blvd., Suite 975 San Diego, California 92101 Pasadena, California 91101 Telephone: (619) 231-1883 Telephone: (626) 535-9860 Email: ekanter@enkanter.com Email: hboyer@ecbappeal.com smurphy@ecbappeal.com Attorneysfor PlaintiffandAppellant S$234269 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA LATRICE RUBENSTEIN, Plaintiffand Appellant, vs. DOE #1, Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION 1, CASE NO. D066722 HON. JUAN ULLOA, JUDGE, SUPERIOR COURT No. ECU08107 JOINT ANSWER TO AMICI CURIAE BRIEFS LAW OFFICES OF ELLIOT N. ESNER, CHANG & BOYER KANTER Holly N. Boyer, SBN 221788 Elliott N. Kanter, SBN 95054 Shea S. Murphy, SBN 255554 2445 Fifth Avenue, Suite 350 234 East Colorado Blvd., Suite 975 San Diego, California 92101 Pasadena, California 91101 Telephone: (619) 231-1883 Telephone: (626) 535-9860 Email: ekanter@enkanter.com Email: hboyer@ecbappeal.com smurphy@ecbappeal.com Attorneysfor PlaintiffandAppellant TABLE OF CONTENTS INTRODUCTION 00. ..cccecccsesessesecescnsneestencesenesesseesscusensessceneeenaeneenenscaeeeense 4 I. CLAIMS FOR CHILDHOOD SEXUAL ABUSE Do NOTACCRUE AT THE MOMENTTHE ABUSE ENDS AND AMICI CURIAE FAIL TO CITE ANY AUTHORITY PROVIDING OTHERWISE........sscsscssesssecosssrccocescesreressrceceersee 7 Il. WHETHER OR NOT THE STATUTORILY DEFINED DELAYED DISCOVERY RULE OF SECTION 340.1 GOVERNS THE DATE OF ACCRUAL,IN THE VERY LEAST, PRINCIPLES OF COMMON LAW DELAYED DISCOVERY APPLY AND RENDER PLAINTIFF’S GOVERNMENT CLAIM TIMELY....... 14 Il. SECTION 340.1 CODIFIES A DISCOVERY RULE WHICH CAN DELAY ACCRUAL, AND DOES NOT ESTABLISH A TOLLING MECHANISM...... 17 IV. GOVERNMENT CODESECTION 905, SUBDIVISION (M) IS NOT UNDERMINED BY APPLYING THE DELAYED DISCOVERY PROVISION. 21 V. UPHOLDING RUBENSTEIN WILL NOT HAVE A CATASTROPHIC IMPACT ON RISK-SHARING POOLS IN CALIFORNIA BECAUSE RUBENSTEIN DOES NOTALTER THE OPERATION OF GOVERNMENTCODESECTION 905, SUBDIVISION (M).....-ccssssssssecssescsccessucsseesessscansesssesscsssscsnecssseseessessecssusens 25 CONCLUSION o.oo... cece ccccescseeseessesscesesaceeensseesssessesetensessrseeesssnegecessssesrsasees 27 CERTIFICATE OF WORD COUNT.............csccsssssssssessecscseseneseacsasssenseaees 28 TABLE OF AUTHORITIES Cases Bunch v. Coachella Valley Water District (1989) 214 Cal.App.3d 203 20.0.ccsssssccssssscesessseseseceacacecesesseererscessrenesensssenessene 9 County ofLos Angeles v. Superior Court (2005) 127 CalApp.4th 1263 ..........ccscssessssecsscscessesscsceesssseceseseceaceetssaeerersseaesns 21 Curtis T. v. Cty. ofLos Angeles (2004) 123 CalApp.4th 1405 oo.csscesceresssesnesssesesosersseeeceeessaseesesrensers 17 Ginns v. Savage (1964) 61 Cal.2d 520 ouesssscescectsscesesscescssecseosscsseosssesssesseaseesseseasataceseeseress 9 Goldstein v. Superior Court (2008) 45 Cal.4th 218onesesseseseseesssesssensceesseecenseessessssossessssoeseeseaconsors 15 John R. v. Oakland Unified School District (1989) 48 Cal.3d 438 oocsssesescsccscessseccsssssscnsesssceceerecsseseasaseeesenssenensnes 12, 13 KJ. v. Arcadia UnifiedSchool District (2009) 172 Cal.App.4th 1229oeccesssectssssessscecsstccesssesseessececesenenenes 15, 16 Marsha V. v. Gardner (1991) 231 Cal.App.3d 265 oo... eesscsseesessesssssssesnerarsssesssnessstesseeseecensoes 17, 18 Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 ceceseccscsssescsscessceerensssecsecessesssoseseessonsensssesenseenes 13, 14 Quarry v. Doe I (2012) 53 Cal.4th 945 uu. cscessescsssseressssseeeccesesscesssesseaesanseceoeseseeeeseans 8, 18, 19 Rubenstein v. Doe No. | (2016) 245 Cal.App.4th 1037.0... cecscscssserersscesescessessensessessonsseesseenens 6, 15, 16 S.M. v. Los Angeles Unified School District (2010) 184 Cal.App.4th 712 occscesesessccseseesecscossesoosesserssseeecssssensssesessanes 17 Shirk v. Vista Unified School District (2007) 42 Cal.4th 201oeessescctcsecssesetsecnsecrererenesesseesceseseeeneees 9, 10,11, 12 V.C. v. Los Angeles UnifiedSchool District (2006) 139 Cal.App.4th 499cecsssseccceessscessecsecsesereaceesenscseeaeesenees 17, 19, 20 Statutes Cal. Rules ofCourt, rule 8.516(D)(1)..........scsssesscsesssececsssesetessccsceececseesensestsaseeees 15 INTRODUCTION In their respective briefs, Amici Curiae California State Association of Counties and LeagueofCalifornia Cities (collectively “CSAC”) and Northern California Regional Liability Excess Fund, Southern California Regional Liability Excess Fund, Statewide Association of Community Colleges, and School Association for Excess Risk (collectively “ReLiEF”) make an argument whichis based on a flawed premise—that the discovery rule does not apply to claims arising for childhood sexual abuse, and that they accrue at the time of molestation. It is only under this flawed premise that Amici Curiae can justify both their accusation that Rubenstein abolished Government Code, section 905, subdivision (m), and the parade ofhorribles they portend will ensue. However, when the argumentsare peeled back and the cases Amici Curiaerely on are read in their factual contexts, it is clear that Rubenstein simply applied the law as enacted by the Legislature, and achieved the appropriate result. This result, in fact, is not just the legally correct outcome,butis also the outcome whichfairness to the victims of childhood sexual abuse requires. While CSAC doesnot clearly identify what, specifically,it is arguing, it appears from the introductiontoits brief that CSACbelieves the Court of Appeal’s holding allowsvictims of childhood sexual abuse occurring before January 1, 2009 to bring claims against government entities without complying with the Government Claims Act’s six month claim presentation requirement. (CSAC,at pp. 1-2.) ReLiEF more forcefully and clearly articulates the same erroneous contention: Rubenstein unequivocally nullifies Government Code section 905, subdivision (m), treating pre-2009 abuse claims the same as post-2009 abuseclaims, eliminating the well-settled six month claimspresentation requirement,‘and holding that pre- 2009 abuse claims may be brought any time within three years ofthe victim's realization that adult-onset psychological injury was caused by childhood sexual abuse. (ReLiEF,at p. 10.) This characterization of the Court of Appeal’s holding, however, is completely wrong. Indeed, neither the Court ofAppeal nor Plaintiff have asserted that Plaintiff was not required to comply with the Government Claims Act’s six-month claim presentation requirement, let alone the wholesale “nullification” of Government Code, section 905, subdivision (m). Indeed, as explicitly recognized by the Court of Appeal, Plaintiff actually complied with the Government Claims Act’s six month claim presentation requirement. (Rubenstein v. Doe No. I (2016) 245 Cal.App.4th 1037.) While, CSAC’sbriefoffers little insight into how it reached its conclusion that the Court ofAppeal’s decision abridges the applicability of the Government Claims Act to claimsarising from childhood sexual abuse occurring before January 1, 2009, ReLiEF offers a more full-throated argument.' Wastinglittle time, ReLiEF begins by ringing the well-wom alarm bells, asserting that “the Fourth District Court of Appeal's decision in Rubenstein v. Doe No. 1 (2016) 245 Cal.App.4th 1037,if it is allowed to stand, will have a catastrophic impact on the continued viability of risksharing pools in California.” (ReLiEF, at p. 8.) Making surethat effect of the phrase “catastrophic impact”is not lost on this court, ReLiEF musters a sober assurancethat “[t]his is not hyperbole.” (Ibid.) As an insurance entity which, by its own account, could be on the hook for some schooldistricts’ liability for the harm suffered by their students arising ' CAOC’s arguments,to the extent there are discernable, are subsumed in the arguments advanced by ReLIEF. Assuch,Plaintiff will respond to ReLIEF’s arguments. from the sexual abuse and exploitation they are in part responsiblefor causing, ReLiEF’s concernsare explicitly monetarily motivated. (ReLiEF, at pp. 5-11, 36-41.) However, irrespective of whether ReLiEF’s hue and cry is hyperbolic, the reasoning underlying its concerns is completely mistaken. Misportraying as controlling law a number of decisions which, while they involve childhood sexual abuse claims against public entities, do not address the issue present in this case, ReLiEF sets the stage for its argument by appearing to take the indefensible position that childhood sexual abuse accrues at the momentthe sexual abuse occurs,irrespective ofwhen the victim “discovers” the abuse. (ReLiEF,at pp. 11-14, 22-27.) With this legal fallacy in hand, ReLiEF reasons that because childhood sexual abuse claims accrueat the time of abuse, the provisions of Code ofCivil Procedure,’ section 340.1, which explicitly provides for delayed discovery of such claims, does not, in fact, affect the date of accrual, but, rather, creates a “tolling mechanism” which delays only the applicability ofthe statute of limitations. (ReLiEF, at pp. 16,31.) ReLIEF then reasonsthat becauseit only tolls the statute of limitation, section 340.1 does not delay accrual and thus cannot affect the operation of the six-month claim presentation requirement under the Government Claims Act, which begins running upon accrual. (Ibid.) As such, according to ReLiEF’s“logic,” the six-month period in which victims ofchildhood sexual abuse must present their claim to the responsible governmententity begins to run the instant the victim’s abuserfinishes sexually molesting the victim. 2 All undesignated section references are to the Code of Civil Procedure. Having developedits “instantaneous accrual” theory of childhood sexual abuse, ReLEIF turns to Government Code section 905, subdivision (m), and effectively asserts that all claims against public entities arising from childhood sexual abuse occurring prior to January 1, 2009, accrued at the time of abuse, and are now barred by operation of the Government Claims Act. In a leap oflogic that is hard to follow, ReLiEF asserts that to hold otherwise, would effectively abrogate Government Code section 905, subdivision (m), and would expose schooldistricts to a catastrophic amount of potentialliability. (ReLiEF, at pp. 9-11, 32-35.) Asnow explained,there is no support for ReLiEF’s argument. 1. CLAIMS FOR CHILDHOOD SEXUAL ABUSE DO NOT ACCRUE AT THE MOMENT THE ABUSE ENDS AND AMICI CURIAE FAIL TO CITE ANY AUTHORITY PROVIDING OTHERWISE ReLiEPF’s entire argumentis premised on the flawed assertion that claims for childhood sexual abuse accrue at the time of molestation without exception, but no authority supports such a position. Indeed, as this Court explained in Quarry v. Doe I (2012) 53 Cal.4th 945, 963, through the numerous amendmentsto section 340.1, the legislature “created its own Statutory delayed discovery rule, evidencing intent to provide a new rule that would extend delayed discoveryprinciples beyond what had been recognized in the case law. [Citation.]” (Ibid., [emphasis added].) In its discussion, Quarry specifically noted that delayed discovery principles are relevantto the accrual of a claim. (/d., at p. 960.) In other words, this Court has already recognized that the discovery rule may delay the accrual of a claim for childhood sexual abuse. ReLiEF, however, appears to base its argument on whatit identifies as the “language”ofthe decisions it relies on.* (ReLiEF,at p. 23.) Specific to its contention that claims arising from childhood sexual abuse accrueat the time of abuseis the “language” ofShirk v. Vista Unified SchoolDist. (2007) 42 Cal.4th 201. However, the legal significance of a decision does notarise from the abstract language of a decision, but from the holding of the court asit arises from the facts ofthe case and the issues presented. (Bunch v. Coachella Valley Water Dist. (1989) 214 Cal_App.3d 203 citing Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) Examining the factual context and the issues presented in the cases on which ReLiEF relies clearly reveals that these decisions do not support its position that accrual occursat the time of molestation without exception. ReLiEFfirst articulates its notion of instantaneous accrual by quoting this Court’s decision in Shirk, supra, 42 Cal.4th 201. Ignoring the broaderfactual context of the case, ReLiEF focuses on what superficially appearsto be a parallel argumentraised by the plaintiff there: that her duty to present her claim arose when she discovered her psychological injury wascaused by her teacher’s sexual abuse. (ReLiEF,at p. 12.) Omitting the 3 In her Answering Brief on the Merits, Plaintiff responded to the District’s reliance on Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, V.C. v. Los Angeles UnifiedSchool Dist. (2006) 139 Cal.App.4th 499, and County ofLos Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, and explained how these decisions were not relevantto the issue of accrual. (Plaintiff's Answering Brief on the Merits, at pp. 25-31.) Without addressing Plaintiff's arguments, ReLiEF parrots the position ofthe District concerning the purported relevance of these authorities. (ReLiEF,at pp. 22-32.) first word of the sentence, “Generally,” ReLiEF asserts that this Court held that ‘“‘a cause of action for childhood sexual abuse accrues atthe time of molestation,’....” (ReLiEF, at p. 12.) Beyond being a misquote, ReLiEF’s presentation of the context of this “language”is entirely inaccurate. Asdiscussed in Plaintiff's Answering Brief on the Merits, the dispositive factual issue in Shirk that sets Shirk apart from the instant matter—which ReLiEF completely ignores—wasnoted by this Court at the very beginning ofits opinion: “Plaintiff acknowledges that becauseofher failure to present a claim to the School District in 1980, Aer cause ofaction against the School District was extinguished in 1980.” (Shirk, supra, 42 Cal.4th at pp. 205-207 [emphasis added].) The plaintiff therefore conceded that her governmenttort claim was untimely. As such, her primary argument on appeal! was that her claim fell within the 2002 amended provision of Section 340.1 which “revived” for the calendar year 2003 those childhood sexual abuse causes ofaction on whichthestatute of limitations had already lapsed. (/d. at pp. 210-213.) The Court rejected this argumentnoting that the revival statute only applied to claims barred by the statute of limitations, and not those barredbya failureto file a government claim. (/d.) “Had the Legislature intendedto also revive in subdivision (c) the claim presentation deadline under the government claimsstatute, it could have easily said so. It did not.” (Jd. at p. 213.) The Court then addressed the plaintiffs “second contention”that “her duty to present a claim to the SchoolDistrict did notarise until September 12, 2003, when,at the age of 41, she first learned from a mental health practitioner that her adult-onset emotional problemsresulted from teacher Jones’s molestation of her as a teenager, some 25 yearsearlier.” (Shirk, 42 Cal.4th at p. 214.) The Court rejected that contention,finding thatthe legislature did not intend to revive claims by persons who had recently discovered “a new injury attributable to the same predicate facts underlying a cause of action previously barred by failure to comply with the governmentclaimsstatute.” (/d. at p. 214 (emphasis added).) In other words, the discovery of“adult-onset” harms doesnot create a second accrual of a claim whichthe plaintiff had conceded already accrued. Here, the timeliness of Plaintiff's claim is not based on the discovery of a “new”or “additional” injury. Rather, as alleged, Plaintiff suppressed all memory ofthe sexual abuse and it was not until early 2012, when the latent memories of the sexual abuse resurfaced for Plaintiff, that shefirst discovered any injury. Thus, unlike Shirk, where the issue addressed was whether an already accrued and barred claim can be revived,the issue here is simply when Plaintiff's claim first accrued. Since Shirk only considered the issue of whether an already accrued and barred claim “re-accrued” underthe 2003 revival period, it’s reasoning does not apply to the issue of original accrual ofPlaintiffs claim here. Despite being fully briefed in Plaintiff's Answering Brief on the Merits, ReLiEF fails to appreciate this point. Rather than actually acknowledge the language employed by this Court in Shirk, ReLiEF attempts to misportray this Court’s discussion in Shirk as a rejection ofthe conclusion reached by the Court of Appeal here: that Section 340.1 applies in determining the date ofinitial accrualfor claim filing purposes. But this did not happen. The one paragraph discussion by this Court concerning this issue speaks foritself. In responseto theplaintiff's second contention, this Court held: We disagree. We concludedearlier that the Legislature's amendmentofsection 340.1, subdivision (c), revived for the 10 year 2003 certain lapsed causes of action against nonpublic entities, but that nothing in the express language ofthose amendments or in the history oftheir adoption indicates an intent by the Legislature to apply againstpublic entity defendants the one-year revivalprovisionfor certain causes ofaction. (§ 340.1, subd. (c).) In light of that conclusion,it seems mostunlikely that the Legislature also intended revival applicable to persons who discovered only in 2003 a new injury attributable to the same predicatefacts underlying a cause of action previously barred byfailure to comply with the governmentclaimsstatute. (Shirk, at p. 214 (emphasis added).) Nothing in this one paragraph supports ReLiEF’s position that Shirk rejected the notion that Section 340.1 governs the date a claim initially accrues for purposesoftort claim filing.* Moreover, ReLiEF’sreliance on its misquote ofShirk, whichin its entirety reads “/gJenerally, a cause of action for childhood sexual molestation accruesat the time of molestation[,]” (Shirk, supra, 42 Cal.4th at p. 210), is entirely misplaced. This language does notreflect the holding in Shirk, nor was it necessary to the holding. Rather, this language was a precatory explanation this Court used to provide the legal contextofits subsequent analysis. Moreover, examining the origin of this statement reveals its facile meaning. In making this statement, Shirk cited to John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438. In John R., a student was molested by 4 To the extent Amici Curiae argue that Plaintiffs position is akin to the dissenting opinion in Shirk, Amici Curiae is again mistaken. (AC pp.13.) In her dissenting opinion, Justice Werdegar simply acknowledgedthat a claim may accrue twice — once,at the time of the last molestation, and again, when Section 340.1 was amendedto include a revival provision. (Shirk, at pp. 214-215.) Such an analysis is inapplicable here, and unlike Plaintiff's position before this Court, given that Plaintiff has never concededthat her was previously barred. Il his teacher while participating in an extracurricular program. The teacher threatened John that if he told anyone he would receive failing grades and the teacher wouldtell people that John hadsolicited sex from him. “Asa result of these threats, and his embarrassment and shame at what had happened, John did notdisclose the incidents to anyone for a numberof months. John finally told his father about the molestation 10 monthslater in December 1981.” (John R., 48 Cal.3d at p. 442.) Before addressing the issue of whether a schooldistrict can be vicariously liable for an employee’s sexual abuse of a student, the Court addressed the timeliness of the government claim. (/d. at p. 443-445.) “The question arises here becauseplaintiffs did not present a written claim to the district within 100 days of the accrual of their causes of action— measuredfrom the date that John was molested— ...” (Id. at p. 443 (emphasis added).) The Court explainedin a footnote that “[a] cause of action accrues for purposesofthefiling requirements of the Tort Claims Act on the same date a similar action against a nonpublic entity would be deemed to accrue for purposes of applying the relevantstatute of limitations. (Gov. Code, § 901.)” (id.at p. 444, n. 3.) The Court did not offer any direct explanation for why the date of accrual occurred at the time of the last molestation. However, the notion that a tort claim “generally” accruesat the time of injury was recognized by this court in its seminal discussion of the discovery rule in Norgartv. Upjohn Co. (1999) 21 Cal.4th 383, 404-05. While this Court formulated a “general rule” for accrual based on the time the elements of the tort were complete in Norgart, this Court cautiously explained “‘at least as a usual matter, the date of accrual of a cause ofaction for wrongful death is the date of death. [Citation.]” (/d., at 404 [emphasis added].) The Court’s 12 caution arose from its acknowledgmentthat “{a]n exception to the general rule for defining the accrualofa cause of action—indeed, the “most important” one— is the discovery rule. [Citation]” (/d., at p. 397.) As this Court explained, the discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.}” (/bid.) In John R., the Court did not expressly address the issue of whether delayed discovery applied to delay the date of accrual — presumably becauseit found that the allegations of threats by the teacher to be sufficient to support application of equitable estoppel, and remanded the matterto the trial court for a factual determination on that issue. (/d. at pp. 445-446.) Asimportantas the discovery rule is to the accrual oftort claims generally, it is impossible to overstate how uniquely important discovery of harm in the context of childhood sexual abuse is. While it is no doubt possible for claims arising from childhood sexual abuse to accrue at the time of abuse,the reality is that the objective facts of childhood sexual abuse demonstrate that a child most often does not know heorsheis being injured at the time of the sexual abuse. It is only from an adult perspective that the harm from such abuse can usually be recognized such that childhood sexual abuse claims “generally” do not accrue at the time of the molestation. 13 Il. WHETHEROR NOT THE STATUTORILY DEFINED DELAYED DISCOVERY RULE OF SECTION 340.1 GOVERNS THE DATE OF ACCRUAL, IN THE VERY LEAST, PRINCIPLES OF COMMON LAW DELAYED DISCOVERY APPLY AND RENDERPLAINTIFF’S GOVERNMENT CLAIM TIMELY Irrespective of whether section 340.1 provides that claimsarising from childhood sexual abuse can accrue following the completion ofthe sexual abuse, which it unequivocally does, ReLiEF refuses to address the applicability of the common law doctrine of delayed discovery to claims concerning childhood sexual abuse, arguing that the issue was not decided by the Court of Appeal and thus not properly before this Court. (ReLiEF, at p. 29, n. 8.) ReLiEF is mistaken, notonly is this issue properly before this court, but it would apply to this case were section 340.1 not already applicable. The issue of commonlaw delayed discovery is properly before this Court because there was nobasis to file a cross-petition; application of the commonlaw delayed discovery rule to the facts here is not inconsistent with the Court of Appeal’s opinion. (Cal. Rules of Court, rule 8.516(b)(1); Goldstein v. Superior Court (2008) 45 Cal.4th 218, 225 [the California Supreme Court “may decide any issuesthat are raised or fairly included in the petition or answer.”].) Indeed, Rubenstein specifically noted “delayed discovery principles may apply to a causeofactionarising out of childhood sexual abuse.” (Rubenstein, supra, 200 Cal.Rptr.3d at p. 216, citing KJ. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1239.) While the Court of Appeal correctly concludedthat the statutory delayed discovery rule of section 340.1 applied to delay the accrual date for 14 Plaintiff's claim, the Court rejected the District’s argumentthat “the commonlaw delayed discovery doctrine no longer exists for childhood sexual abuse claims after Quarry.” (Ibid.) The Court noted that Quarry recognized that the statutory amendment removing reference to common law delayed discovery from Section 340.1 in place of a statutorily defined delayed discovery. This recognition, however, does not foreclose application of the common law delayed discovery doctrine where the statutorily created doctrine does not apply. (/d., at pp. 216-217.) Notably, the Court ofAppeal largely relied on the decision in K./. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1239, which underscored the application of delayed discovery to claims for childhood sexual abuse, both as it is set forth in Section 340.1 and arises in common law. (/bid.); see also K.J., supra, 172 Cal.App.4th at pp. 1241-1243, see also n. 2 & 7.) Thus, there was no need forPlaintiff to separately petition this Court on the issue of application of common law delayed discovery, and any analysis ofthis issue is only offered as an alternative legal basis for the Court of Appeal’s holding. Given the overlap between Legislatively created and judicially recognized delayed discovery provisions, and the fact that both support the Court of Appeal’s opinionin this case, the issue may properly be considered by this Court. ReLiEFandthe District therefore cannot ignore application of delayed discovery to claims for childhood sexual abuse. The position taken by the District in its Reply to the Brief on the Merits, and echoed by ReLiEF,that neither section 340.1 norprinciples of common law delayed discovery apply to child sexual abuse claimsis gravely mistaken and indeed, antithetical to the intentions of the Legislature and the interests of the State. (See Reply Brief on the Merits, pp. 23-37.) 1) Undersuch an analysis, a student sexually abused by her teacher would be treated more harshly than a student injured by equipment on a playground, or by physically assaulted by another student. This makes no sense. The notion that children abused by public employees would be deprived ofany application ofthe delayed discovery rule is, to borrow a word repeatedly used by Amici Curiae, “catastrophic” given the vulnerable nature of such abuse andthereality that most victims do not immediately recognize the touching as wrongful. Thereis no authority that supports such a position—the very cases cited by the District elsewhere in its brief recognize the application of commonlaw delayed discovery to an analysis of accrual for claim filing purposes. (See S.M. v. Los Angeles UnifiedSchool District (2010) 184 Cal.App.4th 712, 717 [the accrual date for presenting a governmenttort claim may be postponed underthe delayed discovery doctrine]; V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 515 [Courts may equitably apply the delayed discovery doctrine to a cause ofaction for sexual abuse brought by a minor”]; see also Curtis T. v. Cty. ofLos Angeles (2004) 123 Cal.App.4th 1405, 1411 [triable issue of fact as to whether delayed discovery rule applied to extend the date of accrual].) Amici Curiae and the District fail to offer any explanation forits radical contention that children who are sexually abused should be singled out and precluded from relying on the delayed discovery rule. Indeed,it is in the very context of sexual abuse torts against children, where children are often manipulated by those trusted adults in a position ofpower over the child, that the application of the discovery rule is most appropriate. Here,Plaintiff's alleged that she repressed all memory of her sexual abuse. Per Marsha V. v. Gardner (1991) 231 Cal.App.3d 265, these 16 allegations are more than sufficient to establish delayed discovery under the commonlaw. (/d., at pp. 271-73, [highlighting that the plaintiff was not alleging “at any time after an act of sexual molestation occurred she forgot or suppressed or otherwise was unawareofthat act”); [“[u]nless awareness ofthe acts is immediately suppressed the plaintiff would necessarily be aware ofthe injury, and the hidden nature ofthe full damage would not bring the delayed accrualrule into play.”].) I. SECTION 340.1 CODIFIES A DISCOVERY RULE WHICH CAN DELAY ACCRUAL, AND DOES NOT ESTABLISH A TOLLING MECHANISM Equally as unfounded as ReLiEF’s childhood-sexual-abuse-accrues- at-the-time-of-abuse theory is its contention that Section 340.1 does not provide a delayed discovery rule, but, rather, creates a “tolling mechanism.” Asalready noted, and explainedin Plaintiff's Answering Brief on the Merits, this court specifically refuted this very argument in Quarry, supra, 53 Cal.4th 945. This Court began Quarry by described the general principles of the discovery rule: while “[a] cause of action accrues, and the limitations €66,period begins to run, when ““the cause of action is complete with all ofits elements”? [citations], ... [uJnder certain circumstances, however, the accrual ofthe action may be postponed and the runningofthe limitations period tolled “until the plaintiff discovers, or has reason to discoverthe cause of action. ...” (d., at p. 960 .) Reviewing the numerous amendments to section 340.1, this Court explained that the amendments to Section 340.1 “created its own statutory delayed discovery rule, evidencing intentto 17 provide a new rule that would extend delayed discovery principles beyond what had been recognizedin the case law." (/d., at p. 965 [emphasis added].) There is no mistaking this Court’s conclusion: section 340.1 provides for delaying the accrual of a claim for childhood sexual abuse. Indeed, this Court explained in Quarry: “‘The obvious goal ofamended section 340.1 is to allow sexual abuse victims a longer time period in which to become awareoftheir psychological injuries and remaineligible to bring suit against their abusers.’ [Citations.]” (/d., at p. 963.) Bizzarely, even though ReLiEF quotes some of the very language from Quarry set forth above, recognizing section 340.1’s statutory delayed discovery rule, this directly applicable and contrary authority does nothing to deter ReLiEF from advancing its theory that section 340.1 only establishes a “tolling mechanism.” (ReLIEF,at 31.) To support this position, ReLiEF attempts to pull selective quotes from V.C., supra, 139 Cal.App.4th 499. (ReLIEF, INTRO and 25-26.) However, a meaningful inspection of V.C. reveals that this case does not support this proposition. As explainedin Plaintiff's Answering Brief on the Merits, V.C. involved a plaintiff who was sexually molested by her teacher between 2001 and 2003. (VC., 139 Cal.App.4th at p. 504.) The plaintiff s mother had suspected something was going on and discussed the matter repeatedly with school administration. By August 2003, the teacher was criminally charged for his abuse of V.C. On September 17, 2004, V.C. presented her claim for damagesagainst the District. After it was rejected, the plaintiff broughther civil action against the school district and the District demurred on the ground that claim was untimely. 18 Sustaining the demurrer, the court in V.C. rejectedthe plaintiffs argument that Section 340.1 “sets the date ofaccrual ofher cause ofaction at or beyond the age ofmajority, thereby rendering her claim timely.” (/d. at p. 509 (emphasis added).) However, the court did not reject this argument becauseit concluded section 340.1 did not contain a delayed discovery provision. Rather, the /.C. court observed that “V.C. confounds the principles of limitations periods and accrual dates.” (/bid.) Rather, the Court ofAppeal held that while it may categorically extend the statute of limitations date beyond the age of majority, section 340.1 does not categorically extend accrual date beyond the age of majority. (/d., at pp. 509-10.) Nevertheless, in explaining its holding, the court in V.C. employed the following inartfull statements: “section 340.1 extends the time during which an individual may commencea causeofaction alleging childhood sexual abuse, it does not extend the time for accrual ofthat cause of aseaction,” and “‘[a] civil cause of action for child molestation generally accruesat the time of the molestation’” (/d., at 510.) Despite the seeming expansiveness ofthis language, which ReLiEF quotes, in the remainder of the paragraph that these quotes are from V.C. acknowledges the application of delayed discovery to the very facts of that case. (/d., at 510.) The Court of Appeal explained that “[a]pplied here, the outside date of accrualis August 15, 2003, when Castro wasarrested.” (Jbid.) If, as ReLiEF contends, V.C. was holding that 340.1 does not provide for delayed discovery of childhood sexual abuse claims, and that accrual happensat the time of the childhood sexual abuse, then the plaintiffs claims would have accruedat the time she was molested, and not thereafter when her child abusing teacher wasarrested. By acknowledging that accrual occurred at 19 the teacher’s arrest, V.C. necessarily recognized that the accrual of the plaintiff's claims was delayed beyondthe date of abuse, until discovery. ReLiEFalso attempts to rely on County ofLos Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, to support its position. This case, however, offers no guidance on the issue present here. Rather, as explained in Plaintiff's Answering Brief on the Merits, the issue before the Court in County ofLos Angeles concernedthe applicable statute oflimitations. The plaintiff argued that “she commencedsuit within eight years of attaining the age of majority and thus her action was timely under the statute of limitations applicable to victims of childhood sexual abuse.” (County of Los Angeles, 127 Cal.App.4th at p. 1266.) Rejecting such a position, the Court explained that “Section 340.1 does not trump the [Government Claims] Act,” and that pursuant to the Government Code, the applicable statute of limitations is Section 945.6 (providing that a claim be filed within six-monthsafter the claim accrues). (Jd. at p. 1269-1270 [emphasis added].) Plaintiff does not argue otherwise. The issue in this appeal concerns accrual, and as admitted by Amici Curiae, County ofLos Angeles did not concern the issue of accrual. (See ReLiEF,at p. 25 [while Amici Curiae argue that “the court ultimately punted on the accrual issue,”this is a mischaracterization as there was nothing to “punt” since accrual was not before the Court].) Assuch, ReLiEF’s argumentthat section 340.1 only provides a tolling mechanism, and does not provide for delayed discovery, has no merit. 20 IV. GOVERNMENTCODE SECTION 905, SUBDIVISION (M) Is NOT UNDERMINED BY APPLYING THE DELAYED DISCOVERY PROVISION ReLiEFconcludesits statutory arguments with the assertion it raised in its Application to File Amicus Curiae Brief, reasserting that the enactment of Government Code section 905, subdivision (m), definitively establishes that delayed discovery does not apply to claims of childhood sexual abuse occurring before 2009. (ACB at 32-34.) Specifically, ReLiEF asserts that allowing delayed discovery to apply to the six month Government Claims Act claim presentation requirement Plaintiff's claims are subject to would “render[] Government Code section 905(m) superfluous.” (ACB 35.) ReLiEF is mistaken. The untenability of ReLiEF’s argument is apparent on the face ofthe statute itself; the plain language of Government Code,section 905, subdivision (m), says nothing whatsoever about, and has nothing whatsoever to do with, delayed discovery. It stands to reason,then, that the legislative purposes for Section 905, subdivision (m), cannot be undermined by the operation of delayed discovery. Rather, Section 905, subdivision (m), provides that victims of childhood sexual abuse occurring after January 1, 2009 are not required to present a claim pursuantto the Government Claims Act, irrespective ofwhen the claims accrued. Moreover, given thatit is not disputed that the sexual abuse ofPlaintiff occurred before 2009,Plaintiff is not now arguing, and the Court of Appeal did not below hold,’ that she is exempt from complying with the six-month > The Court of Appeal correctly concluded that Government Codesection 905 (m) has no applicability to the instant matter. 21 claim presentation requirements of the Government Claims Act. Plaintiff freely acknowledges, and the Court of Appeal correctly observed, that her claims are subject to the six month claim presentation requirements of the Government ClaimsAct andthat she in fact complied with thosefiling requirements. Nevertheless, hoping to bootstrap a cosmetic measure of legitimacy into an otherwise fatuous argument, ReLiEF again resurrects its misportrayalofthis court’s decision in Shirk. Based exclusively on this flawed reading ofShirk, ReLiEF then attempts to read legislative materials for an unenacted bill—SB 1339—withlegislative materials for the bill which was enacted in response to Shirk—SB 640—to quixotically infer that “the California Legislature understood Shirk to hold that Section 340.1 did not alter the accrual date for the purpose ofthe claims presentationstatute.” Given that, as already discussed, nothing about Shirk’s holding speaksto the discovery rule and accrual, ReLiEF’s attempt to portray the legislative intent behind Government Codesection 905, subdivision (m), fails. Beyond the fact that the holding in Shirk’s had nothing to do with accrual, absolutely nothing ReLiEF cites to demonstrates that the Legislature’s response to Shirk was predicated on the very flawed interpretation of Shirk advanced by ReLiEF. To begin with, ReLiEF misapprehendsthe legislative materials it cites to regarding SB 1339. Specifically, ReLiEF fails to note the significance of the word “notwithstanding”in its quote from the Senate 666Judiciary Committee’s analysis of SB 1339: “‘existing case law [referring to Shirk] holds that, notwithstanding[] section 340.1 and its delayed discovery provisions, a timely [public entity six-month] claim is a prerequisite to maintaining an action for childhood sexual abuse against a 22 public entity [school district].’ [Citation.]” (ReLiEF, at pp. 32-33 [bold added,italics original].) The use of “notwithstanding”reveals that, contrary to ReLiEF’s contention, and consistent with Quarry, the Senate Judiciary Committee recognized that decisional law which addressed section 340.1 found a statutory discovery rule within Section 340.1 which can delay accrual for the purpose of determining the operative six-month period for presenting a claim as required under the Government Claims Act. The next sentence from the Senate Judiciary Committee quoted by ReLiEF—SB 1339 “would ‘amend [Government Code] Section 905 to provide that claims against local public entities for the recovery ofdamages suffered as a result of childhood sexual abuse made pursuant to CCP Section 340 .1 would be exempt from the Government Tort Claims Act and its six-month public entity claim presentation requirement.’ [Citation.]” (ReLiEF, at p. 33)}—is entirely agnostic to accrual. Rather, building onits “notwithstanding” commentary quoted by ReLiEF,the Senate Judiciary Committee was merely providing in summary form what SB 1339 purported to accomplish: exemptingall claims arising from childhood sexual abuse, no matter when the abuse occurred and no matter when these claims accrued, from the six-month GovernmentClaimspresentation requirement. Turningto the legislative materials for SB 640, ReLiEF quotes from the Senate Rules Committee discussion ofthe bill: “Senate Bill 640 did pass and was‘identical to SB 1339[], except that this bill applies prospectively only, to claims arising out of conduct occurring on or after January 1, 2009 ... [which] should reduce the bill's financial impact on local public entities.’ [Citation.]” (ReLiEF,at p. 33.) This quote is again 23 entirely agnostic to accrual. Rather, building on the Senate Judiciary Committee’s description of SB 1339 to include SB 640’s single additional limitation reveals that SB 640 sought to exemptall claims arising from childhood sexual abuse which occurred after January 1 2009, xo matter whenthese claims accrued, from the six-month Government Claims presentation requirement. Far from demonstrating that the legislature sought in any way to modify the way childhood sexual abuse claims accrue under Section 340.1, the legislative history ReLiEFcites to only confirms whatis clear from its plain statutory language: section 905, subdivision (m) exempts from the six-month governmentclaim presentation requirement claimsarising from childhood sexual abuse occurring after January 1, 2009, notwithstanding section 340.1 and its delayed discovery provision. Nothing about ReLiEF’s argument demonstrates otherwise. Rather, it appears that the Legislature knew exactly what it was doing, and accomplished exactly whatit set out to do. 24 E R A N SE S Sa t” V. UPHOLDING RUBENSTEIN WILL NOT HAVE A CATASTROPHIC IMPACT ON RISK-SHARING POOLSIN CALIFORNIA BECAUSE RUBENSTEIN DOES NOT ALTER THE OPERATION OF GOVERNMENT CODESECTION 905, SUBDIVISION (M) In its final section, ReLiEF’s advancesthe policy argument that upholding Rubenstein will wreak havoc on the ability of school districts to participate in risk-sharing pools. The exclusive support for this contention is that the legislature did not anticipate Rubenstein. (ReLiEF,at p. 40-41.) But, as is clear from the above discussion, the Court of Appeal’s holding in Rubenstein does not alter the operation of Government Code section 905, subdivision (m), and is not outside the scope ofwhat the Legislature anticipated. In fact, Rubenstein does not in any wayalter, let alone expand, any ofthe legal rights held by those who were victimized by childhood sexual abuse who may have a claim arising from that abuse against a government entity. As was the case both before and after Rubenstein, for those individuals whose claimsarise from childhood sexual abuse occurring before January 1, 2009, once they discover or have reason to discover those claims, they must comply with the six month claim presentation requirement of the GovernmentClaims Act. Only for those victims whose childhood sexual abuse occurred after January 1, 2009, would the claims arising from that abuse not be required to comply with the six-month claim presentation requirements. Beyondnot having underlying legal support for its policy argument, even from a policy standpoint, ReLiEF’s wide-eyed argumentthat 25 upholding Rubenstein would cause the risk-sharking pool market to evaporate, (ReLiEF, at p. 40-41) completely misses the mark. Claims arising from Childhood Sexual Abuse representan injury visited upon a child at a time when they are unable to understand the harm they have been caused. These harms can and do haverepercussionsfor the victims which last a lifetime, a portion of which are undoubtedly bourn also by the community as a whole. Therelief these victims are seeking merely alleviates, or attemptsto alleviate, the harms they must endure byshifting some monetary portion back onto the governmententity which wasin part responsible for the injury in the first place. There is nothing inequitable aboutthis. 26 CONCLUSION For the foregoing reasons, nothing either Amici Curiae CSAC or ReLiEF justifies overturning the Court of Appeal opinioninthis case. Dated: January 23, 2017 LAW OFFICES OF ELLIOT N. KANTER ESNER, CHANG & BOYER 7Shes8. Murphy autbinevsfor Plaintiffand Appellant, Latrice Rubenstein CERTIFICATE OF WORD COUNT This Appellant's Joint Answer to Amici Curiae Briefs contains 6,443 per a computer generated word count. Poof # gs re ihe of . sy o . LLLPaead a, ‘~’Séa S. Murphy 28 PROOF OF SERVICE Iam employedin the County of Los Angeles, State of California. [am over the age of 18 and not a party to the within action; my business address is 234 E. Colorado Blvd., Suite 975, Pasadena, California 91101. Onthe date set forth below, I served the foregoing document(s) described as follows: JOINT ANSWER TO AMICI CURIAE BRIEFS,onthe interested parties in this action by placing_ the original/ X a true copythereof enclosed in a sealed envelope(s) addressed as follows: SEE ATTACHED SERVICE LIST kx} BY OVERNIGHT DELIVERY placed the package for overnight delivery in a box or location regularly maintained at myoffice or J delivered the package to an authorized courier or driver authorized to receiveDOCUMENTS. The package was placed in a sealed envelope or package designated with delivery fees paid or provided for, addressed to the person(s) on whomit is to be served at the address(es) shown above,at the office address(es) as last given by that person on any documentfiled in the cause and served on the party making service; otherwise at that party’s place of residence. STATE I declare under penalty ofperjury that the foregoingis true and correct. I declare underpenalty of perjury under the laws ofthe State of California that the foregoing is true and correct and that this declaration was executed on January 23, 2017, at Pasadena, California. Mons Mee Marina Maynez, 0 \\ 29 SERVICE LIST Latrice Rubenstein v. Doe No, I (S234269 / D066722) Richard J. Schneider, Esq. Attorneysfor Lee Harris Roistacher, Esq. Defendant and Respondent Daley & Heft, LLP Doe No. | and 462 Stevens Avenue,Suite 201 Solana Beach, CA 92075 Telephone: (858) 755-5666 Facsimile: (858) 755-7870 Email: RSchneider@daleyheft.com Leila Nourani, Esq. Sherry L. Swieca, Esq. Douglas M.Egbert, Esq. Jackson Lewis P.C. 725 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017 Telephone: (213) 689-0404 Facsimile: (213) 689-0430 Email: leilanourani@jacksonlewis.com swiecas@jacksonlewis.com egbertd@jacksonlewis.com Louis A. Leone, Esq. Seth L. Gordon, Esq. Leone & Alberts 2175 N. California Blvd., Ste. 900 Walnut Creek, CA 94596 Telephone: (925) 974-8600 Facsimile: (925) 974-8601 Email: lroistacher@daleyheft.com sgordon@leonealberts.com Family Violence & Sexual Assault Institute c/o Brittany Crowell 10065 Old Grove Road, Suite 101 San Diego, CA 92131 30 Pub/Depublication Requestor Brawley Union High School Attorneysfor Defendant and Respondent Doe No.1 Attorneysfor Amici Curiae Northern California Regional Liability Excess Fund, Southern California Regional Liability Excess Fund, Statewide Association of Community Colleges, and School Association for Excess Risk Amicus Curiae Institute on Violence, Abuse & Trauma Asmicus Curiae c/o Brittany Crowell 10065 Old Grove Road, Suite 101 San Diego, CA 92131 Elliott N. Kanter, Esq. Attorneysfor Plaintiffand Law Offices of Elliot N. Kanter Appellant 2445 Fifth Avenue, Suite 350 San Diego, CA 92101 Telephone: (619) 231-1883 Facsimile: (610) 234-4553 Email: ekanter@enkanter.com Court of Appeal (Appellate Court) Fourth Appellate District, Division 1 750 B Street, Suite 300 San Diego, California 92101 Imperial County Superior Court (Trial Court) Hon.Juan Ulloa El! Centro Courthouse, Dept. 9 939 W. MainStreet E] Centro, CA 92243 31
